Canons of statutory interpretation by Johnson Yesaya.

 

INTRODUCTION

In Tanzania, there is several sources of law but for the purpose of this work, statutes or parliamentary legislations will be the major point of consideration. Statute is a piece of legislation enacted by parliament, statutes contain repositories of authoritative rules binding on every person, organs, or agents of the government. Legislation or enactment of laws is an exclusive power given to the national assembly and later the assent by president is necessary to make bills of parliament come to force[1]. Basing on some reasons such as shortage of time of parliament sessions and technicalities, parliament may delegate its legislative powers to government departments or ministries and local government. Regardless of being good or bad, as long as statute is passed by competent authority, that statute is valid. Statute is considered as the expression of the will of the sovereign or supreme authority of the state binding over all in the realm. The Constitution of United Republic of Tanzania[2] gives legislative powers to parliament under Article 64(1) and provides limitation to the extent in which parliament may make laws, parliament is limited and prohibited to make laws which contravenes articles of constitution and in case happens a statute contravenes provision of constitution, such law is void and provisions of constitution prevails. [3]

Interpretation is a process by which a judge (or any other person) obtains a meaning from the words of a statute[4]. It is concerned with ascertaining the sense and meaning of the subject matter, the written text, a statute in this case. The process of interpretation is concerned with how a dispute about words and their meaning is arrived at so that there is consistency and certainly (ex-rationale legis) in law. While, statutory interpretation is the understanding of meaning of words and phrases used in a statute. The interpreter always seeks to understand the actual meaning of words and phrases is statutes, contracts and wills which sometimes not speak only about present matters but the matters to come (future matters)[5]. In Tanzania, a country which adopted common law tradition of Britain, statutory text or legislative rules are supreme source of law. Other sources of law include decrees, rules, regulations, notices, statutory instruments etc, each of these sources are subject to different rules of interpretation. Statutory interpretation in case of court of law is the process by which courts determine the meaning of statutory texts for the aim of applying them to factual situations brought before them. The interpretation in a suit happens when a party(s) get into argument about the exact meaning of certain words, a court must prior give the interpretation of words in dispute before further proceedings.

CANONS OF STATUTORY INTERPRETATION

Traditionally there were three principles or canons of statutory interpretation to say literal rule, golden rule and mischief rule of statutory interpretation. But since 1970s there has emerged another principle known as “purposive approach” as evidenced in the case of Northman v. London Borough of Barnet[6], and Joseph Warioba v Stephen Wasira and Anorth. Purposive approach requires every judge or magistrate who determine matter before him basing on the above rules of statutory interpretation to give the reason of his/her decision.

The Literal Rule[7], according to the literal rule of statutory interpretation, a court should adhere to the wording of the statute. The rule protects and encourage the use of actual text of the statute without adding or taking from or modifying the letter of the law. The statutory words must be read in their ordinary, natural and grammatical meaning without amendment to it.

Lord Reid in Pinnet v Everett[8] stated that, “In determining the meaning of any words or phrases in a statute the first question to ask always is what the natural and ordinary meaning of that words or phrases in its context. It is only when the meaning leads to some results, which cannot reasonably be supposed to have been the intention of the legislature that it is proper to look for some other possible meaning of the word or phrases” [emphasis added].

The court of law may proceed to add words or meaning over the provision of the statute if they think, and openly see statute poorly construed. Adding words or extending meaning of statutory provisions can be done when clearly visible that the law makers had intention to cover a particular thing but unfortunately it is not clearly said in the provision and the court think by doing so, the legislation will be meaningful and failure to cover the loops the legislation will not be effective enough to handle the intended matter. Extending meaning of a statute doesn’t mean deleting the entire provision, it means adding more meaning to a provision so as to have efficient provision which covers entire area of intended objection.

The Golden Rule[9] states that, adherence to grammatical and ordinary sense of the words in statutory interpretation is necessary and very important unless to do so lead to absurdity, some repugnancy inconsistent with the rest of the instrument. The rule provides that, the grammatical and ordinary sense of the words may be amended so as to avoid absurdity or inconsistency but no further. Golden rule is almost the same as literal rule but it reflects consideration of social policy behind the statute. The Golden rule specifies occasion in which court of law may depart from plain meaning of the statute especially when adherence to grammatical and ordinary sense of words of statutes lead to absurdity, some repugnancy inconsistent with the rest of the instrument. The Golden Rule elevate the judges and magistrates from being just appliers of the law to be conscious individuals who can exercise their discretion and sense of justice.

Other views about Golden Rule were stated by Terence Ingman[10], according to Terence, the golden rule is used in two ways. One is to modify the literal rule in order to avoid absurdity. In its applicability, the Golden Rule says that, if the statutory text is vague or ambiguous, the court of law is permitted to modify it while avoiding absurd results. In its second, broader, application the golden rule is sometimes used in preference to the literal rule where the words used can have only one literal meaning. This is especially so where considerations of public policy intervene to discourage the adoption of an obnoxious interpretation

Mischief Rule is a principle used for the interpretation of a statute. This principle is used by the courts or judges to determine the intention of the legislature[11]. The goal of this principle is to find mischief and defect in a statute and to implement a remedy for the same. The courts while applying the principle tries to determine the real intention behind the enactment. This rule thus assists the court in identifying the proper construction of statutory wording according to the original intention of the legislature.

This principle was applied for first time in Heydon’s case[12] in the early 16th century, where it was held that, “the mischief rule should only be applied where there is ambiguity in the statute”. The ambiguity of statutes includes more than one meaning of words in a provision or where provision covers other things not clearly stated in a provision. Courts may interpret provision to give clear meaning or to extend scope of a provision to cover all things intended to be covered by provision enacted by legislature[13].

In Corkery v Carpenter[14], defendant was charged under section 12 of the Licensing Act[15] of England, by being drunk in charge of a “carriage” on high way. When you read S.12 between lines, there is no word “bicycle”, there are words like “carriage”, “horse”, “cattle”, or “esteem engine”, but accused was found guilty of the offence because mischief rule of statutory interpretation was used to extend scope of a word “carriage” to include bicycles and other pedal carriages[16].

There are other case laws where a mischief rule of statutory interpretation was used to extend scope of provision to cover the intention of the parliament as hereunder,

In Smith v Hughes[17], the defendants who were prostitutes, were charged under the Street Offences Act[18] for soliciting from their private premises in windows so as public could see them. During hearing, defendants defended themselves that they were not at public, it was their private premise. Defendants were found guilty, court interpretation went far to say that, their activities were within the mischief of Act, it was intended by the legislature to include all prostitute activities in whatever condition and premise.

In Royal College of Nursing v DHSS[19], in this case, The Royal College of Nursing challenged before court of law, the involvement of nurses in carrying out abortions. It was an offence under The Offences Against the Person Act[20] for any person to carry abortion. The Abortion Act[21] came to that “it would be an absolute defence for a medically registered practitioner (ie a doctor) to carry out abortions provided certain conditions were satisfied”. Due to advancement in science and technology, surgical abortions were largely replaced with hormonal abortions and it was common for these to be administered by nurses, and their concern was the legality for nurses to get involved in abortion while it was not clear stated in law.

It was held that, it was legal for nurses to carry out abortion, because the 1861 Act intended to prevent street abortion where there was no medical care, but 1967 Act came to establish defence to medical experts who get involved in abortion include nurses in mischief.

In Elliot v Grey[22], defendant was charged with an offence under The Road Traffic Act[13] for using un-insured vehicle on the road. Defendant argued that, he was not using the car as it was said, his car was not actually drive-able, it was parked on the road, jacked up, and without battery.

It was held that, the car was being used as it represented hazard and therefore insurance would be required in the event of an incident. The mischief rule was used to extend the meaning of using a car to include un-drive-able cars since it was an intension of enactment to protect public from incidence involving cars of all types and insurance was necessary.

Some scholars criticized mischief rule by interfering doctrine of separation of power. Scholars argued that, it is a duty of legislature to enact laws, but at the same time, courts may interpret the laws as they wish to cover what they claim, “intention of the parliament”.

CONCLUSION

A mischief rule in Tanzania has been used in many cases and suits include a case of Mwinyimadi Ramadhani V Republic[23], Republic v Omari s/o Kindamba&Oth[24] and a case of Ali s/o Mapuliko Kailu V. Republic[25] where interpretation of possession of trophies was concerned. All rules of statutory interpretation must be applied careful to avoid interfering with the intention and powers of the parliament, the rules are not applied freely but in accordance to some conditions as stated above.

REFERENCE

BOOKS

Terence Ingman, The English Legal Process, 8th Edn.  Blackstone Press Ltd 2000 pp 237-242

Morris & Read, The British Commonwealth:  The Development of Its Laws and Constitution- Uganda chapter 10

Cole & Dennison, Tanganyika:  The Development of Its Laws and Constitution, Steven Sons London 1964 chs 2 & 5

Moris& Read, Indirect Rule and Search for Justice Essays in African Legal History, Clarendon Press Oxford, 1972

CASE LAWS

Republic v Omari s/o Kindamba & Oth[1960] EA 407 (T)

Ali s/o Mapuliko Kailu v.Republic [1976] LRT.37 at 147 Kisanga J.

Mwinyimadi Ramadhani V Republic, Crim. App

ONLINE SOURCES

https://definitions.uslegal.com/m/mischief-rule/

http://e-lawresources.co.uk/Smith-v-Hughes

Law resources, “Smith v. Huges”; available at <http://e-lawresources.co.uk/Smith-v-Hughes> accessed May 15, 2022

US Legal, “mis-chief”, available at <https://definitions.uslegal.com/m/mischief-rule/> accessed May 15, 2022

Everycrsreport, “statutory interpretation”, available at <https://www.everycrsreport.com/reports/R45153.html> accessed May 15, 2022

Law teacher, “The Rules Behind Statutory Interpretation”. Available at <https://www.lawteacher.net/free-law-essays/administrative-law/the-rules-behind-statutory-interpretation-administrative-law-essay.php> accessed May 15, 2022

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[1] The Constitution of United Republic of Tanzania, Cap 2 of 1977. Art 64(1)

[2] Ibid. Art 64(5)

[3] Mukoyogo, “legal method ii”, 2005/06. Pg 55-60.

[4] Everycrsreport, “statutory interpretation”, available at <https://www.everycrsreport.com/reports/R45153.html> accessed May 15, 2022

[5] Law teacher, “The Rules Behind Statutory Interpretation”. Available at <https://www.lawteacher.net/free-law-essays/administrative-law/the-rules-behind-statutory-interpretation-administrative-law-essay.php> accessed May 15, 2022

[6] Northman v. London Borough of Barnet [1978] All ER 1243 CA at P. 1246

[7] [Terrence Ingman (2000) pp 253 – 257; Justice G.P. Singh 9th Edn 2004 pp 78 – 109]

[8] Pinnet v Everett, [1969] 2 ALL ER 257 at 258 – 259

[9] G. Williams, Learning the Law, 11th Edn 1982 p 97

[10] Terence Ingman, The English Legal Process, 8th Edn Blackstone Press Ltd 2000 pp 257-261

[11] US Legal, “mis-chief”, available at <https://definitions.uslegal.com/m/mischief-rule/> accessed May 15, 2022

[12] (1584) 76 ER 637

[13] ibid

[14] Corkery v Carpenter [1951] 1 KB 102

[15] Licensing Act 1872

[16] Law resources, “Smith v. Huges”; available at <http://e-lawresources.co.uk/Smith-v-Hughes> accessed May 15, 2022

[17]Smith v Hughes [1960] 1 WLR 830

[18] Street Offences Act, 1959

[19] Royal College of Nursing v DHSS [1981] 2 WLR 279

[20] The Person Act, 1861

[21] The Abortion Act 1961

[22] Elliot v Grey  [1960] 1 QB 367

[23] Mwinyimadi Ramadhani V Republic, Crim. App

[24] Republic v Omari s/o Kindamba&Oth

[25] Ali s/o Mapuliko Kailu V. Republic, [1960] EA 407 (T)